Skinner v. Coward

5 Citing cases

  1. Ridley v. Jim Walter Corp.

    272 N.C. 673 (N.C. 1968)   Cited 3 times

    G.S. 45-21.31 prescribes the application to be made of the proceeds of a foreclosure sale. After the payment to the holder of the entire amount due upon the note, or other indebtedness, secured by the deed of trust, the trustee must pay over the balance of the proceeds either to the clerk, as provided in G.S. 45-21.31, or to the owner of the equity of redemption. Skinner v. Coward, 197 N.C. 466, 149 S.E. 682. The payment by the trustee of such surplus of the proceeds to a person not entitled thereto results in the unjust enrichment of that person at the expense of the owner of the equity of redemption. An action for money had and received to the use of the plaintiff may be maintained "whenever the defendant has money in his hands which belongs to the plaintiff, and which in equity and good conscience he ought to pay to the plaintiff."

  2. Military Academy v. Dockery

    94 S.E.2d 354 (N.C. 1956)   Cited 9 times
    In Staunton Military Academy v. Dockery, 244 N.C. 427, 94 S.E.2d 354 (N.C. 1956), a mortgagor's judgment creditor was permitted to recover from the trustee who foreclosed on the property and distributed surplus in disregard of the claim by the judgment creditor.

    Bobbitt v. Stanton, supra. Defendant J. S. Dockery, Trustee, had actual notice of plaintiff's claim and lien before he disbursed said surplus. This distinguishes this case from cases where the trustee disbursed the surplus to the owner of the equity of redemption prior to actual notice of the junior lien. Skinner v. Coward, 197 N.C. 466, 149 S.E. 682; Barrett v. Barnes, 186 N.C. 154, 158, 119 S.E. 194; Norman v. Hallsey, 132 N.C. 6, 43 S.E. 473. When adverse claims were asserted, defendant J. S. Dockery, Trustee, might have discharged his liability by paying said surplus to the clerk of the Superior Court of McDowell County under authority of G.S. 45-21.31 (b)(4).

  3. Horne-Wilson, Inc. v. Wiggins Bros., Inc.

    164 S.E. 365 (N.C. 1932)   Cited 6 times
    In Horne-Wilson v. Wiggins Bros. 203 N.C. 85, 164 S.E. 365 (1932) the North Carolina Supreme Court faced a question similar to the one now before this Court: "Can the assignee of a valid claim of a laborer and materialman file, perfect, and enforce a lien upon the land upon which said labor and material was performed and furnished?

    Burr v. Maultsby, 99 N.C. 263; McAdams v. Trust Co., 167 N.C. 494, 83 S.E. 623; Harris v. Cheshire, 189 N.C. 219, 126 S.E. 593. Consequently the plaintiff under approved principles of procedure was entitled to bring an independent action in the Superior Court to reach the surplus proceeds arising from the sale of property under power contained in the first deed of trust. Skinner v. Coward, 197 N.C. 466, 149 S.E. 682. The other questions raised by the demurrer are not sustained, and the judgment as rendered is

  4. Sheets v. Stradford

    156 S.E. 144 (N.C. 1930)   Cited 4 times

    The power of equity created the remedy of reformation for the purpose of correcting errors produced by mutual mistake or mistake of one party induced by the fraud of the other in order that the true intention of the parties might be effectuated, and when equity thus acts upon a transaction, its power thus invoked relates to the beginning of the transaction. Maxwell v. Bank, 175 N.C. 180, 95 S.E. 147; Long v. Guaranty Co., 178 N.C. 503, 101 S.E. 11; Strickland v. Shearon, 191 N.C. 560, 132 S.E. 462; Crawford v. Willoughby, 192 N.C. 269, 134 S.E. 494; Skinner v. Coward, 197 N.C. 466, 149 S.E. 682. The application of the principle of reformation upon the facts disclosed in the record does not affect the rights of the purchaser of the property under power contained in the first deed of trust, for the reason that the parties are not attempting to set the sale aside or to assert title to the land, but are contending solely and exclusively for the balance of the money which has been paid into the hands of the clerk by the trustee.

  5. Southern Athletic/Bike v. House of Sports, Inc.

    53 N.C. App. 804 (N.C. Ct. App. 1981)   Cited 8 times
    Concluding that a judgment that lacks personal jurisdiction over the defendant is void

    We hold that Judge Kirby's judgment of 1 December 1978 was void for lack of personal jurisdiction over defendant and affirm the order from which plaintiff appeals. Burgess was not a party to the action and the "show cause" order did not make him one. Skinner v. Coward, 197 N.C. 466, 149 S.E. 682 (1929). In order to render a valid judgment against a defendant, it is essential that jurisdiction be obtained by the court in some way allowed by law.